Essex Rubber Co., Inc.

National Labor Relations Board - Board Decisions

Jun 9, 1943

50 N.L.R.B. 283 (N.L.R.B. 1943)

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In the Matter of ESSEX RUBBER CO., INC.-and UNITED RU'BISER WORKERS
OF -AMERICA, LOCAL No. '212,, AFFILIATED WITH THE CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Case No. C-2536.-Decided Jwne 9, 19413
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DECISION
AND
ORDER
On February 19,- 1943, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
annexed hereto., Thereafter the Union filed exceptions to the, Inter-
mediate Report and a' brief in support of its exceptions, and the re-
spondent filed a reply brief. The Board has reviewed the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
Upon request ,of the Union, and pursuant to notice, a hearing was
held before the Board in Washington, D. C., on May 13, 1943; for the
purpose of oral argument. The respondent and-the Union were repre-
sented by counsel and participated in the hearing.
The Board has considered the Intermediate Report, the Union's
exceptions and brief, the respondent's brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations made by the Trial' Examiner, with the exceptions and modifi-
cations noted below : , ,
•.1. The Trial Examiner has found that the respondent did not inter-
fere with, dominate, or contribute support to the Society, and we agree
that the record does not sustain this allegation in\ the complaint. In
reaching this conclusion, we do not rely on the fact that it was not until
June 20, 1942, that the Society formally amended its bylaws so as to
denominate itself a labbr organization. The Society was ostensibly
organized for the purpose merely of promoting sports and social ac-
tivities among the respondent's employees. But White, the- moving
spirit in the organization of the Society, was admittedly and strongly
opposed to the Union. In organizing the Society, White sought and
50 N. IL. R. B., No. 43.
283
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284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtained'the aid and advice of an officer of an" unaffiliated labor organi-
zation at a nearby, plant. White, Fritsch, and Marsh, three of the six
employees who took the initial steps in organizing the Society andhwho
became its first group of officers, had been departmental representatives,
in the Factory Council, the employee representation plan which was
disestablished by•the respondent in June 1941, after a charge had been
filed with the Board alleging that the Council had been dominated and
supported by the respondent. Prior to'-the election conducted by'the-
Board on June 24, 1941, to determine whether or not the respondent's
employees desired to be represented- by the Union for collective bar-
gaining purposes, White and Fritsch had openly sought ]eave from the)
,respondent to post anti-union literature on the plant bulletin boards.
Shortly after organization of the Society in October 1941, it started a
-campaign to facilitate and encourage the resi 9iation of union mem-
bers; officers of the Society advised employees as to the procedure to
be followed in resigning from the Union,'and carried on their person's
'prepared forms of'resignations from the Union. This was clearly an
effort to alter the employees' previous designation of a representative
for the purposes of collective bargaining. In February 1942, a com-
mittee headed by White, then president ofthe 'Society, requested the
respondent to'institute a check-off of $1 per month from the wages of
members of the Society.' When the request was rejected by the re-
spondent, the committee sought and obtained another conference'with
the respondent which-was also attended by-a, number-of the respond-
erit's skilled employees and at which the dispute or grievance arising
out of the respondent's initial rejection of the request for, the check off
was settled after the employees present had in effect threatened to
and the other committeemen and members of the Society were obviously
acting not only for themselves but also on behalf of all other-members
of the Society. Under the circumstances, ' we are of the opinion and
we find that the Society was in•fact a labor organization, within the
-meaning of Section,2 (5) of-the Act, prior to the formal 'amendment
of its bylaws in June 1942.- -
Even if we did not believe that the Society was a labor organiza-
tion prior as well as subsequent to the amendment of its bylaws, we
would nevertheless hold that domination and 'support of the Society,
by the respondent prior to June 20, 1942,' if that were established-by
the record, would constitute unfair Tabor practices, within the mean--
( ig of Section 8 (2) of the, Act. To hold that an employer's inter-
rence, domination, and support do not fall within the proscription
the Act, solely because the organization thereby affected (did not
come a labor organization until after the interference, domination,
d support had ceased, would make effective enforcement 'of Section.
(2) of the Act impossible. It would mean, in effect, that an em-
strike. In these negotiations with the respondent fora check-off, White
FFSSEX RUBBER CO., INC. 285
ployer• could with impunity lend his unrestricted support to an
organization which, having gained majority status among the em-
ployees b'ecause•of the employer's support, may then claim the right
to-represent the employees for the purposes of collective bargaining.
But,that is not the present case, since we agree with the Trial Exam-
iner that the evidence does not show interference with, or domination
and support of, the Society by the respondent.
2. The Trial Examiner has found that during September and,
October 1942,'and particularly on October 2, 1942, the Union did not
represent a majority of the respondent's employees in an appropriate
unit. The evidence upon which this finding rests, as thel Trial Ex-
aminer has stated, is not conclusive, and we believe the finding un-
necessary to the conclusion that the respondent did not in September
and' October 1942, refuse to bargain collectively with the Union, within
the meaning of Section 8 (5) of the Act-. Since we have found that
the respondent did not interfere with,) dominate, or support the
Society, it is.enough to say that'in September and October 1942 the
respondent, was faced with the reasonable and conflicting claims for
recognition of two, bona fide labor organizations.
3. ' The Trial Examiner has found `that, by sending to' its striking
employees. the letter of September 15, 1941, the respondent undercut
the authority of the Union and appealed to the employees individ-
ually to accept the respondent's proposed contract and return to work,
thereby interfering with, restraining, and coercing is employees in the
exe-rcise .of the rights guaranteed in Section 7 of the ,Act. We do
not so regard .the-effect of this letter in'its context, particularly since,
as 'found by the Trial Examiner, it correctly set forth the state of
negotiations between the respondent and the Union. We find that
under the circumstances the respondent's action was not improper,
and the Trial Examiner's finding to the contrary is hereby reversed.
Since we agree with the Tr al Examiner that the remaining allega-
tions of the complaint have.not been sustained, we shall dismiss the
complaint in its entirety..
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, 'the National-Labor Relations
Board hereby orders that the complaint issued herein against the re-
spondent, Essex Rubber Co., Inc., Trenton, New Jersey,, be, and it
hereby is, dismissed. t
CHAIRMAN Mims took no part in the consideration of the above
Decision and Order. -
286 DECISIONS OF NATIONAL LABOR RELATIONS ]'3OARD
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INTERMEDIATE1 REPORT
Mr. Geoffrey J. Gunn, and Mr. Harry G. Carlson, for the Board.
Mr. Sylvan H. Hirsch and Mr. Robert John Brecker, of Philadelphia, Pa., and
Mr. James G. Flanigan, of Trenton, N. J, for the respondent.
Mr. Charles J. Falecy, for 'the intervenor.
Mr. Samuel Rothbard, of Newark, N. J., Mr. Bennie Marano. of Trenton, ,N J,
Mr O. H. Bosley, of Trenton, N. J., and Mr. Rex C. Murray, of Providence, R. I ; '
for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on July 29, 1942, by United Rubber Work-
ers of America, Local No. 212, affiliated with the Congress of Industrial Organi-
zations, herein called the Union, the National Labor Relations Board, herein
called the Board, by its Acting Regional Director for the Fourth Region (Phila-
delphia, Pennsylvania), issued ' its complaint dated December 2_1942, agiiinst
Essex Rubber Co, Inc., herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor 'practices affecting commerce
within the meaning of,Section 8 (1i), (2), and (5) and Section 2 (6) and (7)
of the National Labor Relations Act, 49'Stat.'449, herein called the Act. Copies
of the complaint and notice of hearing were duly served upon the respondent,
the Union, and the Essex Mutual Benefit Society,. herein called the Society.
With respect to the unfair labor practices the complaint alleged in 'substance
that the respondent: (1) from in and about November 1941, and continuing to
date refused and has refused to bargain collectively with the Union as the
exclusive bargaining representative of the 'production and maintenance em-
"ployees of the respondent at, its Trenton, New Jersey plant, including hourly
paid employees in the laboratory and excluding supervisory employees, clerical
employees 'and inspectors, alleged to constitute an appropriate unit; (a) in that
the respondent from in and about November 1941 and continuing to' September
29, 1942, deducted union dues in full for the entire remaining term of a contract
entered 'into with the Union in violation of the terms of said contract ; (b) in
that the respondent maintained from February 1942 to June 8, 1942,• while
negotiating with the Union,, that no wage increase could or would be granted
but on or about June 8, 1942, did grant unilaterally a wage increase to all
employees notwithstanding pending negotiations; (c) in that the respondent
did refuse and continues%to refuse to negotiate or bargain collectively with the,
Union concerning a renewal of said contract; and (d) in that the respondent
on or about October 2, 1942, did grant unilaterally a\wage increase of six cents
per hour without in any manner consulting or bargaining with the Union; (2)'
in or about June 1941, formed and sponsored the Society and from June 1941
tot date contributed to its support and dominated and interfered with its forma-
tion and administration (a) in , that ithe 'respondent by its officers, agents,
servants, representatives, workmen and employees did in or about June 1941
permit certain employees to campaign against the Union during working hours
in and upon respondent's premises, prior to the election for the determinati-)n
of a bargaining,representative; (b) in that the respondent on or about June 30,
1941, posted a notice upon its bulletin board after its employees had selected
the Union as their bargaining representative; stating that the employees need
not, join the Union ; (c) in that on' or about September 29 and October 1, 19411,
the respondent posted notices for the appointment of Robert White as assistant
to the director of personnel and a' letter signed by the said Robert White
declining the promotion; (d) yin that the respondent in and about 'November
6
ESSEX RUBBER CO ., INC. 287
1941 and to date persuaded 'and encouraged its employees to have their union
dues deducted in full for the remaining period of said contract ; ( e) in that
the respondent in or about October 1941 1 and to date permitted supervisory
employees to promote , join or encourage inemb 'ership in the Society in order to
effect a labor organization ; ( f) in that the respondent on or about February 20,
1942, posted a notice in defense of Society activity and condemning the Union;
(g) in that the 'respondent in and about May 1942, ;and to date complied with
the request of the Society for the deduction of Society dues and Society i nsur-
ance-plan payments from the pay of respondent 's employees in disregard of the
respondent 's exclusive contract with the Union ; ( h•) in that the , respondent per-
mitted its supervisors , assistant foremen and, inspectors to join , promote,' en-
courage and remain members of the Society in violatioh of its recognition and
contract with the Union after, the Society extended its charter to include and
permit ' activity as a labor organization ; ( i) in that the, respondent extended
unlimited time and unlimited use of its premises during working hours to the
officers and agents of the Society in corder to solicit and persuade respondent's
employees , to resign ' from the Union and join the Society ; ( j)- in that the
respondent acquiesced in and permitted officers of, the Society to threaten mem-
hers of the Union with loss ' of their jobs if they did not resign from the Union :
(k) in that the respondent on or before June,8, 1942 , informed officers and
members 'of the Society as to a wage increase about to be granted and con-
cealed such fact, from the Union , notwithstanding the negotiations , with the
Union concerning such increases ; ( 1) in that the 'respondent discriminated
against the members of the Union and preferred members of the Society in the
selection of employees for plant guards; ( m) in that the respondent discrim-
inated against members of the Union and preferred members of the Society
in the promotion of employees with increase in pay to the newly created depart-
ment producing dust respirators ; and (n ) 'in that the respondent refused to
bargain with the Union for the purpose' of encouraging membership in the
Society ; and (3 ) by its officers , agents, representatives , servants , and employees
and more particularly by Joseph R. Hewitt, Charles Scott, Fred Cae, Owen L.
Evans, Paul Medkiff, Agnes Byrne, Adele Conover , Charles Herring, Peter Leary,
Thomas C. Smith , Warren F. Taylor , Robert C. White, William Marsh, Jr,
Joseph Fritsch and Tony Panfen, from in and about June 1941 to date did
interfere with, restrain, and coerce its employees , ( a) in that the respondent on
for about June 30, 1941 , posted a notice upon the bulletin board at the climax,
of the union campaign declaring that its employees need not join the Union;
(b) in that the respondent in or about June 1941 , by Joseph R. Hewitt, in the
presence of a union committee including employees of the respondent charged
the union representative with betrayal of the Union at another plant; (c) in
that the respondent on or about September' 15, 1941, mailed a letter to each
of its employees misrepresenting the amount of wage increase offered by the'
respondent and making it appear that the Union accepted in' its final contract
with the respondent a lesser amount than that offered by the respondent during
negotiations ; ( d) in that the respondent on or about September 26, 1941, mailed
a letter to each' of its'employees after said contract had been concluded stating
that its 'employees need not join the Union ; ( e) in that the respondent on or
about November 18, 1941, and to date persuaded and encouraged its employees
to resign from- the Union and to authorize the respondent to' deduct union dues
in full ; ( f) in that the respondent on or about February 20,,1942, posted' upon
its bulletin board a notice derogatory to the Union ; ( g) and in that the respond-
ent during 'July 1942 and to date discriminated against members of the Union
in the,selection of employees for preferred jobs in connection with the newly
288 ' DECISIONS OF NATIO'N'AL LABOR RELATIONS = BOARD
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established plant guard detail and the promotion of,employees to the 6partinent
engaged in the production of dust respirators.
, On-,or about December 17, 1942, the Society filed a petition to intervene,
which petition was granted on December 18, 1942, by the Acting Regional Direc-
tor for the Fourth Region. ' The respondent filed an_ answer denying that it
had committed any unfair labor practices and denying that the Union since
the election of June 24, 1941, ^ has at all times I continued to be the exclusive
representative 'of all the employees of the respondent in the appropriate unit.
The Society filed an ansNver alleging that it did no,t \have knowledge of the
unfair. labor practices and, in effect, denying that, it had been dominated or
interfered with by the respondent. ,
Pursuant to' notice, a-hearing was held at Trenton, New Jersey, commencing
on January.. 4, 1943, and ending on January 11, 1943, before John H. Eadie,
the undersigned Trial Examiner, duly designated by the Chief Trial Exam-
iner. The Board, the-respondent, the Society and the Union were represented
by counsel. All of the parties 'participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses and to introduce evidence
bearing on the ' issues was afforded all parties. At the close of the case,
counsel for the Board moved to conform the pleadings tb the proof as to names,
addresses ,and dates. The motion was made all inclusive so as to 'include the
pleadings of the respondent and the intervenor. The motion was granted
without objection. At the close of the Board's' case, counsel for the Board
moved to dismiss subparagraphs L and Al of, paragraph 11 and subparagraph
G of paragraph 13 of the complaint. The motion was' granted without objection.
At the' close, of, the Board's case the respondent moved to dismiss the corn-
plaint. Ruling on this motion was reserved. At the close of the whole case
respondent again moved to dismiss the complaint and the motion was denied.
At the close of the hearing, counsel for the. Board and the respondent\argued
orally on the record before the undersigned. None of the parties filed briefs
although ,given an- opportunity to do so.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following: '
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT..
Essex Rubber Co., Inc., is a New Jersey corporation having its principal office
and place of business at Trenton, New Jersey, and is engaged 'in the manufacture,
sale and distribution of various kinds of rubber goods. During the first 11 months
of 1942 the respondent purchased raw materials, the value of which was
$677,924.85. Of this amount 82 percent was purchased outside the State of New
Jersey and was transported' into New Jersey-from other States of the United
States. The total,value of products manufactured. by the, respondent during
the year 1942 was in excess of $2,000,000 of which amount apbroximately 97,
percent was shipped and transported in interstate commerce from the respond-
ent's Trenton plant to and through States of the United States other than New
Jersey.' The respondent admitted that it is engaged in commerce, within the
meaning of the Act. At the time of the hearing the respondent was engaged in
the manufacture of goods for the United States Government.
i These findings are 'based upon a-stipulation entered into at the hearing and agreed to
by all parties. % -0
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ESSEX RUBBER CO., INC. 289
II. THE ORGANIZATIONS INVOLVED
United Rubber Workers of America,'Local No 212, affiliated with the-Con;
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gress of Industrial Organizations, is a labor organization which admits to mem'
bership employees of the respondent.,
Essex Mutual Benefit JSociety, unaffiliated, is a labor organization whose mem-
bership is restricted to employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
About four, or five years preceding the date of the hearing the respondent was
in receivership. Joseph R. Hewitt was hired-by the respondent as executive vice-
'president and general manager in order, to help reorganize it. At the time' that
Hewitt became connected with, the respondents the Factory Council, an employee
representation` organization, and herein called the Council, was in existence at
the plant.. The Council had been-formed some time in 1932 or 1933. All em-
ployees of the respondent were automatically members bf the Council by virtue of
their employment. Each department of the respondent selected by secret ballot
one or more representatives, depending on the size of the department. The rep-
resentatives were elected every six months and met with management once a
month . Council members'were not required to pay any dues. The respondent
did not have a written agreement with the Council, but did discuss at these meet-
ings with the Council matters of wages, hours, grievances and working conditions.
Joseph Stremlo, international field representative for the Union, started to
organize the employees of the respondent in the middle of February 1941.
Stremlo learned of the Council and the Union filed 'a! charge with the Board,
alleging that the respondent 'dominated the Council. The respondent entered
into an agreement dated June 12, 1941, providing for the -disesta'blishment of
the Council. Pursuant to this agreement the Council was disestablished, and
the respondent iismediately posted a notice to that effect. This notice an-
nouneed that the' respondent, in the future, would 'not support,' recognize or
bargain with the Council. The respondent did not bargain with the Council
after entering into this agreement. The respondent and the Union then entered
into an agreement witnessed by a field examiner for the Board, dated June 17
providing for a' consent election. The appropriate unit agreed upon consisted
of all production and maintenance employees, and, hourly paid employees in
the laboratory; excluding foremen, assistant foremen, inspectors; supervisory
and clerical employees. Pursuant to this election agreement, an election was
conducted by the Board on June 24, 1941. The ballot provided for a choice
between the Union and no union. - The Union won the election by a vote of 216
to 184 Some time in May of 1941 and prior to the election conducted by the
Board, the respondent had conducted an election on its own initiative between
the Council' and the ;Union. At this election foremen distributed the ballots
and the Council representatives collected the ballots. The Council received
more votes than did the Union. Stremlo testified that in this election the Unioii
advised its members not to vote. On July 7, 1941, Union representatives met
with the respondent and submitted a proposed contract. Thereafter and until
a contract was executed the negotiations required numerous meetings between
Union representatives and the respondent. The obstacles in the negotiations in
the beginning were union shop, wages, vacations and grievances. Toward the
end of the negotiations,, wages and the union shop were the only remaining
obstacles to the negotiation of a contract. In the beginning,' the Union asked
I 290 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I for an increase of 25 cents per hour which it later reduced to 15 cents per hour.
During the negotiations the respondent first , offered an increase of 7 percent,
,then 71/2 percent and finally 10 percent .- According to Hewitt 's uncontradicted
testimony , the original 25 cent increase asked by the Union would have meant
an increase ' in the pay roll of the respondent of from '$250,000 to $275,000 for
1941 . During these , negotiations the respondent produced figures prepared
by a certified public accountant reflecting business activity for the years as
follows : 1936 loss $92 ,0100,; 1937 profit $16,000; 1938 profit $18,000 ; 1939 profit
$44,000 ; 1940 profit $24,000. During the , negotiations the respondent refused
to grant a union shop because of the, closeness of the vote in the , election
conducted by the Board. , In September of 1941 the negotiations became dead-
locked Also according to Hewitt 's uncontradicted testimony , at this time the
respondent 's offered increase to the Union plus . increases granted to its employees
during the year 1941 prior to the negotiations with the Union , represented a
pay roll increase for the year 1941,of approximately , $100,000. A strike vote
was taken by the Union and the employees went on strike from September 15
until September 29, 1941. During the ' strike, negotiations were resumed which
resulted in a contract dated September 26, 1941 . The contract provided, inter
alia, for a payroll check -off for Union members upon presentation to respondent
by the Union of signed authorization cards and further provided for an increase,
of 15 percent on the base; hourly pay of employees as of January 2, 1941.
13. Interference , restraint and coe?cion
,
The Board election was held on June 24, 1941. On June 30, 1941, the re-
spondent posted on its bulletin boaids•the folloN'ing notice:
JUNE 30_1941.
Numerous inquiries have been made of the Industrial Relations Office
of the Essex Rubber Com o,, as to h the t Iw e r
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1 y or no an emp ogee is required
to join the United Rubber Workers,, C. 1. O. which has been certified by
the National Labor Relations Board as the unit for collective bargaining;'
as the result of the election held June 24,1-1941.
In order that there may' be no misunderstanding in connection with this
'question we refer all employees to this notice. " A
The question of whether or not an employee should join the Union is
left by the law, entirely to the judgment of the worker. He or she is free
to join or not as he or she chooses. The Company 1has no interest or
concern as to whether or not an employee is a member of the Union.
We lwish it understood that the Management of the Essex Rubber Com-
pany does not'require an employee to belong to any organization to retain
a job with the Essex Rubber Company.
ESSEX RUBBER COMPANY.
With respect to the posting of this notice , Hewitt testified that prior to the
posting he discussed the notice with Thorn Lord, the respondent 's attorney at
the time, who told Hewitt that he'would find out' whether or not it was a proper
notice for posting, and that Lord later advised him that William Draper Lewis,
a field examiner for the Board , had approved the notice for posting. Lord
testified that he . prepared this notice at the request of Hewitt ; that he tele-
phoned'Lewis and read the contents of the notice to_him `and that Lewis stated
' The above is in accordance with the testimony , of Stremlo which is substantially
uncontradicted. ,
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ESSEX RUBBER CO., INC. 291
he could see no objection to the notice. Lewis testified that lie had no ,recol-
lection" of discussing with Lord the matter of a notice after the election,
"either on the telephone or otherwise." As to the reason for posting the notice,
Hewitt testified, as follows :
Well, we had had as a result of the closeness of the election' we had
had a -great many employees inquire as .to whether or not they ha'd to join
the union . It was stated that the union were forcing everyone-or would
require everyone to belong to the union ; that if they didn't'they would lose
their jobs and that they would have to pay a higher initiation fee at some
later date if they'didu ' t join at that time. , In order to , clarify that picture,
we posted this notice of June 30th.
The undersigned credits the testimony of Hewitt and Lord in this respect
and'finds that the respondent by posting the above notice - did not interfere with,
restrain orjcoerce its employees.
A meeting between the Union and management was held on or about July 15,
1941 , at a hotel in Trenton . This meeting was one , of a number held in an
attempt to negotiate a contract . r At this particular meeting the Union was
represented by Stremlo , Rex C. Murray , who is an organizational director of
the Union , and a committee of about five Union members who were employees
of the respondent . The respondent was represented by Hewitt, Owen L. Evans,
director of industrial relations for the respondent , and Frederick Case, factory
manager of the Trenton ' plant. During the , discussion of Union requests, a
"hostile" argument developed between the representatives of both parties; and-
Hewitt, addressing the Union committee of respondent 's employees and pointing
to'Murray ,, said, "You sold the ' workers out in the Stoughton , Mass ; plant of,
the Panther-Penco Rubber Company for a certain percentage of the increase
that was granted " Murray replied that Hewitt 's statement was a deliberate-
lie,and challenged Hewitt to prove it. Hewitt refused .3 •
.
In the undersigned 's opinion , the evidence shows that Hewitt's - statement was
made during a heated argument and was the result of a personal clash between
Hewitt and Murray. The statement clearly was ill-advised on the . part of Hewitt
and, if it had been inside in the presence of employees ' under other circumstances
or when Murray was not present , it clearly would have constituted interference.
However, under these circumstances the undersigned finds that by Hewitt's state-
1 went the'reslondent (lid not interfere with, restrain or coerce its employees.
On or , about September 15, 1941 , the date when the strike started, the re-
1spondent mailed to u11 of its employees the following letter:
' SEPT 15, 1941.
To Employees of Essex Rubber Companny:
For over two and one-half months we have endeavored to negotiate a
contract with the representatives of the C I 0 -U. R. W. A . Local No. 212.
The last proposal of the Company was rejected because the Union demanded
more than the offered 7% wage increase, and a Union Shop. I
The proposed 7%, wage increase added to the 97/•_,% wage increases which
the Company has already given this year, makes a total increase in wages
of 161/2%. Our annual payroll is approximately $600,000 .00, and the wage
increases given and proposed will total almost $100 ,000_per year.
- 3 The above related episode occurring at a meeting held on or about July 15, 1941, was
testified to, in substance, both by Stremlo and Murray,-and the undersigned credits their
testimony in this respect. Hewitt , Evans and Case, although called as nitnesses by the
respondent , did not deny the statement attributed to Hewitt. ,
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292• D'ECISIO\S OF NATIONAL I :BOR RELATIQ\NS BOARD
Listed below are a few examples taken from actual rates, showing what
the increases in effect,and proposed will amount to:
Avg. Weekly'
Earnings
Dec. 1940
Will
Now
Be,
I_
- Weekly
Increase
$29 50 $33.80' $4.30
25.00 28.60 3.60
21. 50, 24. 75 3. 25
In addition the vacation which you already received is equivalent to a 4
2% increase. ' - ,
In the attached proposed contract which the,Company offered to sign, you
will notice that the Company agreed to pay back wages of 41/2% from July
1, 1941, to the date of the signing of a contract, and the proposed 7% wage
increase will become effective immediately upon the signing of a contract.
With respect to the demand of the Union for a Union Shop, the Company
feels that the matter of 'Union membership should be left entirely to the
judgment of the worker and the Company has no interest or concern as to
whether or not an employee is a member of the Union.
We wish it understood that the Management of the Essex'Rubber Company
does not require an employee to belong to any organizatjon to retain a job'
with the Essex Rubber Company.
The decision of returning to\work and continuing to build for higher, wages
rests entirely with you. -
ESSEX RUBBER COMPANY, ,. \
[S] JOSEPH R. HEwirr,
Joseph R. Hewitt.
Attached to this letter was a copy of a contract as proposed by the respondent
With respect-to the above letter, the Board contends that it misrepresented
the amount of the wage increase offered by, the respondent and made,it appear that
the Union accepted in the contract subsequently entered into with the respondent
a lesser amount than that offered by the respondent during the, negotiations.
In'support of this contention, Strenilo testified that be did not, "consider" para-
graph 2 of the above letter a contract statement-of the sYate'of the negotiations
as. to wages when broken off in that the ,respondent 'during the early part of-
the previous year ha& given a profit-sharing bonus of 25 percent and, during.
1941 reduced this bonus "from 25 percent to 10 percent, and gave the-employees
an increase . . . or a weekly bonus of- 3 percent." ` Stremlo further- testified
that the 3 percent represented an increase on the-base pay of employees. The
substance of his testimony in this 'respect appears to be that the 3 percent increase.
was not in fact an increase since the profit-sharing bonus of 25 percent had been
reduced'to 10 percent, and that the above letter confused the issue" ... by
making the employees feel that the union had turned down an offer of 161/ per-
cent wage increase. . ..
Concerning the 91% percent increases given during 1941 and mentioned in the
( 'above letter, Case , stifled and the respondent submitted documentary proof to
',The 25 percent bonus and the 10 percent bonus-mentioned by Stremlo were profit-spar-'
ing bonuses whereby the employees, were given a participation to the extent of 25 percent
and 10 percent of the profits, if any, made by the respondent. 'The existence of ,these
profit-sharing bonuses was not denied by any witnesses called/by the respondent and there
is not•any\evidenceeither in the-Board's or the respondent's case as to the percentage that
these bonuses increased the base pay of,employees. Therefore, the undersigned is unable
to determine if the 10 percent bonus plus the 3 percent increase on base pay represent
an increase or a decrease with respect to the 25 percent bonus
N
d
_!
ESSEX RUBBER CO., INC. 293
the effect that a1? increase of approximately 4r/.z percent on base pay had been
granted on, January 2, 1941, that a 3 percent increase on base pay had been
granted 'on March 3, 1941, and that a vacation of one week given to employees.
(luring 1941 amounted to a 2 percent increase. As clearly stated in the letter, the
proposed 7, percent increase was in addition to the 91/L percent increases granted-
during 1941. The proposed contract attached to the letter called for an over-
all increase'bf 10 percent on the base rate as of January 2, 1941, eliminating
the 3 percent granted-on March 3 This would be'the equivalent of the proposed-
7 percent increase mentioned in' the letter. -
During the. negotiations. prior to September 15, 'the respondent had increased
its offer from 7 percent to 10 percent of base pay as of January 2, 1941.. The 10
percent'offer reflected the state of the negotiations as of September 15, 1941.
The contract finally negotiated on September 26, 1941, 'calls for an increase of 15
percent on base rates as of January 2, 1941. 'From the above facts the under-
signed fails to see in what way the respondent's letter of September 15, 1941,
misrepresented the state of the negotiations or how employees could construe
this letter so that it would appear that.the Union accepted din the contract ulti-
mately signed with respondent a lesser amount than that offered by respondent
(luring, negotiations, especially since the contract called for a 15 percent increase.
As for the 16M percent mentioned in the letter, the undersigned believes that the
letter in itself is clearly worded Moreover, the attached proposed contract
leaves no doubt that the' 7 percent mentioned in' the letter was exclusive of the'
3 percent increase granted in March 1941. Accordingly, the undersigned finds
that the respondent correctly stated-iii its letter the state of the negotiations as
° of September 15, 1941, and that said letter does not constitute interference in the
manner contended by the Board. However, the undersigned finds that this
latter, as a whole, does constitute interference. As stated above, the strike
started on September 15, 1941, after an, impasse in, the negotiations had been
reached. The overall effect of the letter is, an `appeal, over the heads oft the
representatives of the Union, to the individual employees in order to bring
pressure on them and on the Union to accept the proposals of the respondent'
and to return to work. The undersigned' is of the opinions and finds that by such
appeal. and, solicitation' and by undercutting in this manner the authority of
the Union to act as the exclusive bargaining agent of the employees in the appro-
priate unit, the respondent-has interfered with, restrained and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act. ,
On- September 26, 1941, the respondent sent the following letter to its, em-
-ployees : u '
SEPTEMBER 211, 1941
To Employees of Essex Rubber Company:
Attached is a copy of 'the contract signed'today with the C. I O.-U. R. W. A
Local #212.
The strike has been settled.
You may report for work Monday, September 29th, at your usual time.
In response to the many inquiries during the past two days as to whether,
an employee must join the Union in order to retain his job,,we- refer you to
the'notice published on Bulletin Boards June 30, 1941','which reads in part
as follows :
"In order that there may, be no misunderstanding in connection with
this question we refer,all employees to this notice.
The question 'of whether or not an employee should join, the Union is
left by the law, entirely to the judgment of the worker. He or she is free
to join or not as he or she chooses. The Company has no interest or con-
cern as .to whether or not an employee is a member of the Union.
536105--z44-20 -
294 DECISIONS OF_ NATIONAL LABOR- RELATIONS BO{ RD
We wish it understood-that the Management of the Essex Rubber Com-
pany does not require an employee toabelong to any organization to
retain a job with the Essex Rubber Company " /
EssEx RUBBER COMPANY,
[s] Josarn R.,HEwirr.
Joseph R. Hewitt.
He\i'ittitestified that the notice posted on June'30,1941,-was included in the
letter because employees "repeatedly" asked during the strike if they could re-
turn to work'without joining the Union. The undersigned has discussed above
the notice to employees posted on June 30, 1941,-with the approval of Lewis. -
The undersigned accepts Hewitt's reason for including this notice in the above,
letter and finds that the letter does not constitute interference.
C. Alleged domination of and ante?`ference with the formation and•administrafton
of the Society
On October 4, 1941, the Society was incorporated under the laws of New Jersey.
It was organized by employees White, Fritsch, Marsh, Verrlo, Phillips and Kirsch-
auffer, and it appears that it was formed for the purpose of promoting sports
and social , activities . White became president of the Society , Marsh, vice -presi-
deiht; Fritsch, secretary, Kirschauffer, treasures, Verrlo, assistant 'secretary and
Phillips, assistant treasurer From the record it does ' not 1appear that any of
'these employees held supervisory positions with the, respondent at any time
mentioned herein. t'
Prior to its disestablishment , White and Fritsch were department representa-
tives on the Factory Council. Neither became Union members, although eligible.
Before the Board election in June 1941, they asked Hewitt - for permission to
campaign against the Union and Hewitt denied their request.6
Before ' the strike 'Hewitt had offered White a position • as assistants industrial
relations director and,Cefalo , the president of the Union at the time , a position
in, respondent 's time study department . Hewitt testified that he picked these
two leaders 'of the opposing factions in the plant for these positions in the hope
that , the strike would not materialize and that it would bring about harmony
among the employees . On September 26, 1941 , Hewitt told Cefalo that he was
going to appoint White to the position and Cefalo expressed approval. The
respondent posted a notice , dated September 29, 1941, announcing White's
appointment . At Cefalo's request the respondent did not post a notice an-
nouncing his appointment as Cefalo told Hewitt , that he, was 'trying to obtain
a position as an organizer in the United Mine Workers . Otherwise , the position
was acceptable to Cefalo provided the appointment was approved by the Union.
Hewitt met Murray and advised him of the ' position offered Cefalo and Murray
expressed approval. Cefalo obtained the position with - the United Mine Workers
and left the employ of the respondent about the middle of October 1941. The
respondent received a letter, dated October 1 , 1941 , from White declining the
appointment . At White's request this letter was posted on the respondent's
bulletin boards on October 1 .e 'On the above facts the undersigned Is convinced
that the offer by'the,respondent of the position to,White does not constitute a
violation of the Act. ,
F I
Hewitt testified that White and Fritsch made this ;request and the undersigned so 'finds.
Hewitt testified -to the above facts concerning the appointments offered Cefalo and
White; ' and the undersigned credits his testimony In this respect. His , testimony to the
effect that he offered Cefnlo the appointment and that he so advised Murray is uncontra-
t
dieted. •
1
f
It
I
I .
ESSEX RUBBER CO., INC. 295
Beginning on.or, about November 21, 1941, and continuing until the'termina
tion- of the contract with the Union in September 1942, a total of 44 'Union'
members, resigned from the Union. At about the same time that these em-
ployees resigned from the Union, they requested and authorized the respondent
to deduct their Union dues in full for the balance of the contract period. ,The
letters of resignation were-prepared by White' and Fritsch and were identical
as to form excepting dates and the amounts mentioned as dues deducted in full.
Some of the resignations were prepared individually and others ' were group
resignations. It appears that the first Union members rto resign in November
1941 asked White for advice in this connection. ^
White told them that he did not know the procedure necessary for resigning'
but that he would find out for them. White then consulted an employee by
the name of LeCompte of the C. V. Hill • Company. LeCompte, who, it appears,
was an officer of an independent union at this company, assisted White and
Fritsch in the preparation of the-form- resignation . White then advised these
employees to go to Evans' office in order to have their dues deducted in full.
Evans testified and the undersigned finds that when the employees first requested
him to deduct their union dues in full, he refused to comply and that when the
employees became insistent, he advised Hewitt who agreed to the deduction
of union dues in full. Hewitt prepared the form of the authorization to be used
for the deductions. All authorization forms were signed in Evans' office.'
Prior to November 21, 1941, the date of the first resignation received by the-
Union, 0. H.• Bosley, international field representative of the Union, received•'a
telephone call from Hewitt who asked him what should be done if employees
iequested deductions in full. Bosley testified that he replied that deductions
in full were not possible under the terms of the contract which required that
the dues be, deducted monthly. Shortly after this conversation and after the
first resignation had been received by the Union, the Union received a check
'from the respondent for dues which included duesiin full for the balance of the
'contract period for those employees who had resigned. The Union then ad-
vised the respondent by letter that deductions in full violated the contract and
that the Union would return the dues to the individual employees, which the
Union did. ,The employees who had resigned sent the checks of the Union
back` to the Union and the Union then sent its checks to the respondent, which
the respondent sent back to the Union. The Union then held the money in-
,,escrow" for the employees and took their union dues out monthly.
The'above mentioned resignations, both individual and group,'were witnessed
by officers and members of the Society; and the evidence-shovbs that after the
first resignations were effected, members of the Society carried qn their persons
prepared resignations from the Union to be used when necessary. '
John D'Ignazio,.who wgrked for the respondent in the "press room", was a
member of the Union and was treasurer of the Union in June of 1942. D'Ignazio
testified that Thomas Smith"was a "foreman'" or a "boss` of the press room" °
? Morettoni, one of the first employees to resign from the Union, testified and the under-
signed finds that he "went to see him [Whitel to get out of the Union." '
, 8 Employee Hagerman testified, in substance , that lie first went to Evans ' office and told
him that he wanted to resign _from, the Union and that Evans said that "he didn't think
I could get out of the C I O." Hagerman further testified that he then went to Marsh
to Inquireiabout resigning from,the Union; that Marsh gave him a resignation form which
he signed ; and that he thereafter went to Evans' office and signed an authorization for
the deduction in full of Union dues. The resignation of Hagerman from the Union is dated
August 18,'1942.
' This is a conclusion on the pai t of D' Ignazio and the undersigned does not find that
Smith was a supervisory employee in the press room in June 1942, for the reasons here-
inafter stated. I '
J
296
put ,this mold on. Maybe he will even help him lift it -up on the table
to \ get the mold ready to run . . Well , , it is frequent that ' the presses
run out of stock. Someone has fallen down along the line of scheduling;
or maybe the basket of stock as cut isn't correct , and it is Smith's job to
find -some other stock that will run in that mold or take the mold off
and put another mold on, rearrange the schedules so the men have enough
work to do, and then if there is any serious trouble he will check with
Blydenburg , ( foreman ) and there maybe'nothing they can do ,- and Blyden-
burg will tell him to send - the men home . He keeps the flow/ of material
going through the press room and keeps the' men supplied with work.-
Now, as far as working with his hands , as compared to just walking around
and jupt supervising , I'would say at least 75 percent of his time is spent
on working with his hands.
10 The above conversation 'was testified to by D ' Ignazio, and is-uncontradicted. The
undersigned credits his tgstimony'in this respect. r
man. and tell him .what mold is 'needed . That man will ,then have the
mold cleaned and heated up ready for operation . Smith will go into the
cutting room , check in the'cutting room to make sure they have the stock
and when he , can expect it, in the press room. Then when the stock is in
the press room and the mold is ready he will tell a certain pressman to
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to Smith's, duties D'Ignazio further testified that Smith was ". . . going
around-and,laying work out, . . ." and "He gave me orders, if I had to go home
or come in to work." Some time in June of 1942 D'Ignazio -had, a conversation
with Smith. At about 9 p. m. Smith came to D'Ignazio while he ,was, working
and whispered to him so other employees working nearby would not,hear, "I see
'you are a double-crosser." Upon being asked by D'Ignazio what lie meant Smith
replied, "Well, you know what I mean • you are,"- and "You are going to drop
° out of the-Union.", D'Ignazio admitted that he was going to "drop out" of the
Union and 'Smith said, "Wait until Tony Mareno and Alex Smith hears about
it . . . they are going to cut,your throat" D'lgnazio replied he did not care
and stated "I am going to drop out of the Union, but I,want a written statement
off the company." In explaining this last statement D'Ignazio testified as'follows
"So because I am black-balled, you know, and . . . well, I' will get fired as soon
as I drop; otherwise I won't do it." After this remark of' D'Ignazio's Smith
replied, "You won't have-to worry about that;' there is a club that backs you up;
see." The club referred to by Smith was the Society. - Smith said further, "You
better get on our-side, because, in a few months there is going to be a big change
around here," and "Well, how good is your word,,see?" By this latter remark
D'Ignazio understood that Smith was going to get "written papers for Tice
D'Ignazio did not resign from the Union.10
With respect to Smith, Case testified that Smith was an inspector and that
-inspectors were not supervisory employees ' He further testified that no one
below' the rank of "foreman" had the power to hire, to fire or to recommend
hiring or firing, that Smith in fulfilling, his duties as inspector "transmits some
messages" from the foreman to some of the workers and that if Smith I found
that an-employee was "incapable of performing the duties assigned to him," it
was his duty to report this to the foreman Inspectors are paid on an hourly
basis and perform manual work. In describing- the work of inspectors, Case
took Smith as an'example and testified as follows:
Well, for instance we get an order for a special size or special style
heel and Smith will check sip first to see whether those molds happen t.
be running at the tune. If they are he will get in touch with the mold'
\•
ESSEX RUBBER CO., INC. 297,
Some time during the spinner of 1942 when Knapp, the foreman,on-the "1l'to 7"
shift, was on vacation,' Smith, , as testified to by Case, "stayed over a few hours"
and performed the duties of a foreman. D'Ignazio, however, did not work on
,this shift. The above testimony of Case with respect to Smith was uncon-
tradicted and the undersigned credits his testimony in this respect.
In the conferences between the Union and management' leading up, to the
consent, election agreement and the election of June 24, 1941, the Union in-
sisted that inspectors be excluded from the unit as it considered them to b(-
foremen. This conclusion was reached by the Union after it had considered
an analysis of inspectors' . duties prepared "by the company. The respondent
sent, a letter, dated June 13, 1941, to L7?wis which stated in part as follows:
"It was agreed yesterday that I would forward you the attached list of those)
in our plant in a supervisory capacity, who would' not be eligible to vote in the
election which the National Labor Relations Board will conduct Tuesday,
June 24." The list enclosed with the letter contained the names,'of'all in-
spectors and clerical employees in the plant at that, time. Hewitt testified
that the respondent did,not consider inspectors to be supervisors but agreed
to their-exclusion from the unit. Although it is apparent from the above that
inspectors do exert a certain amount of superyision over ordinary employees,
such ' as pressmen, the undersigned does not believe that the degree of super-
vision is sufficient to' justify ,a finding that they are supervisory" employees
in the sense that they `are representatives of management, and so finds. The
fact that the Union considered inspectors to be supervisors is not conclusive.
Specifically, as to the above mentioned conversation, between Smith and D'Ignazio,
the evidence adduced by the Board does not -show that Smith - was acting
as a substitute foreman during the period of time when the conversation oc-
curred and, assuming that he was so acting at-that time-for the purposes of
:argument, nevertheless, the-evidence does show, that D'Ignazio was not working
on the same shift., Accordingly, the undersigned finds that Smith was not a
representative of management or a supervisory employee at the time of his
conversation with D'Ignazio.
Joseph DiPaola, who worked in the mill room, resigned from the Union on
or about August 18, 1942. He testified that "I didn't see nobody" when asked
whom he did see to get out of the Union and otherwise his testimony indi-
cates that he had' talked the&matter over with his "gang" and they all decided
to resign from the Union. He signed a prepared group resignation that-was
brought to him by Peter J. Leary. Marsh, who is shown as a witness on the
resignation, was not present when DiPaola signed it. Leary was a• foreman
in the mill on June 12, 1941, but ceased to be a foreman on June 14, 1941.
Leary was again made foreman ion November 5, 1942. At the time that DiPaola
signed the resignation, Leary was just an ordinary employee driving a truck
and doing miscellaneous work in the mill. Leary was a Society member up
and until -the time that he"was again made foreman, at which time he re-
signed from the. Society. The undersigned finds that Leary was not employed,
as a supervisory employee during the period of time that-he belonged to the
-from the Union.
n
The respondent carried group insurance for, its employees during 1941. On,
or about December 31, 1941, the respondent posted a notice that it had can-
celed this insurance. On January.`24, 1942, the Society amended its bylaws
to provide for insurance for sick benefits. Hewitt' testified and the undersigned
finds that in the. middle or end of February 1942, a committee of employees
headed by White came to his office and asked for a checkoff for insurance,
which he refused at the time,-that they returned a few days later and brought
298' DECISIONS OF NATION'A'L LABOR RELATIONS BOARD
with them most of the respondent's skilled mechanics ; that they all threatened
to leave the employ of the respondent if the check-off for insurance was not
granted; that he (Hewitt) granted a check-off at this second meeting; that
the Society wanted a check-off of 75 cents for insurance plus assessments
which. they stated would run 13 cents, 17 cents, 29 cents and other. figures to
cover unusual months ;that he insisted on, a specific amount due to bookkeep=
ing ; and that a check-off of $1 was decided upon. Hewitt further testified and
the undersigned finds that he was not told at these meetings that any part
of the check-off was to cover Society dues and that he had not been advised to
this effect by the Society since that time to. the date of the hearing"
The first deduction for insurance 'check-off took place on March 5, 1942.
In fact, 75 cents of this $1 was used by the Society, for group insurance and
the remaining 25 cents was used for Society dues. Respondent was checking
off this $1 for the Society at the time'of the hearing.' The undersigned be-
lieves that the Board failed to-prove that the respondent up and until the time
of the hearing was advised or knew 'that any part'of this $1 check-off covered
Society dues and the undersigned se finds.
In accordance with `the. contract entered Into with the Union, the respondent
met with representatives of the Union in March and April of 1942 to negotiate
wage increases. Although there were two meetings, an agreement could not be
reached. The Union was asking for an increase of $1 per day, and the respondent
did not offer any increase. During the first pant of June 1942, while the nego-
tiations were still open, the respondent decided for reasons hereinafter set forth
to grant an increase•of 3 cents per hour.' On June 8, 1942, the respondent posted
on its bulletin ;board the following notice
1 ,
The Management is pleased to announce,that effective today, June 8; 1942,
• there will be a general increase of 3¢ per hour on all base rates.
Hewitt testified without contradiction and the undersigned finds, that on June 5,
1942, prior to the posting of this notice, he serif for Joseph Chiuitese, secretary of
the 'Union, and told him that the respondent was going to give a three cents per
hour increase to all employees in the plant within a few days. The record. Is
silent as to whether or not, Chiantese took any action. Chiantese was on the
committee of employees representing the Union at all negotiations with the ^re-
spondent. There is no evidence that the respondent similarly advised any mem-
bers or-officers of the Society or that the Society knew of the increase prior to
the posting of the notice on June 8, 1942." ' 1 `
On June 20, 1942, the Society amended its bylaws at a meeting by a standing - '
vote of the members so as to become a labor organization. At this time the
Society had between 200 and 248 active members. In a letter' dated July 22,
1942, the'Society advised Lewis that it had become a labor organization. A letter
also dated July 22, was sent to the respondent advising it that the Society had
become a labor organization and requesting recognition as the exclusive bargain-
.ing'agent of respondent's employees, T''he respondent replied to this letter by a
letter, dated July 23, 1942, as follows r
White was called as; a Board's witness and confirmed Hewitt's testimony to this
effect. White testified that during the meetings with ,Hewitt concerning a check-off for
•insurance the Society told Hewitt that 75 cents'was for insurance and the word,^`assess-
merit" was mentioned During these meetings, White testified,' the Society did not at
any time tell Hewitt that 25 cents df the check-off was for Society dues
" As hereinafter noted, the Society became a labor organization in 'July 1942.
"As hereinafter more fully discussed, the undersigned finds that the June 8 ' raise was
not a violation ' of the Act.
ESSEX RUBBER CO., INC. •299
Jur.Y 23, 1942.
Mr. ROBERT WHITE, Pres.
Essex'Mutual Benefit Society,
Essex Rubber Company,
Trenton, N. J.
^ DEAR SIB :
I received your•letter this morning relative to the fact that the Essex Mutual
Benefit Society desires to become the bargaining agent for the employees of
the Essex Rubber Company.
Please be advised that the Essex Rubber Company' is presently operating
,under a contract with the United Rubber Workers of America, CIO, and that
the CIO is the recognized bargaining agent by the National Labor Relations
Board. Under these circumstances it would be impossible for the Essex
Rubber Company to bargain collectively with any other agency.
Very truly yours,
JRHid
\i
I
Essex RUBBER COMPANY,
JOSEPH R. HEWITT,
Executive Vice President.
The Society admitted to membership all employees of the respondent, pro-
vided that they were not salaried employees. 'Inspectors were permitted to
become members of the Society. It appears that members resigned from the
,Society when they became foremen. It also appears that Union members at all
times were eligible , for membership in the Society. During the term of the
contract with the Union, there were several employees who apparently belonged
to both organizations, as shown by the fact that the respondent (had a check-off
for insurance for the Society and dues for the union at the same time. Charles
DeLaria belonged to the Union at the same time that he belonged to,the Society.
When he became president,of the Union, he was requested by the Society to
resign from the Society. Otherwise, it does not, appear that Union members
were at any time excluded from the Society by reason of their Union member-
ship. The Society was not permitted to organize or to hold meetings oni re-
spondent's premises nor is there any evidence that any foremen, supervisory
employees or representatives of management, belonged to the Society or inter-
fered with its -administration. As above pointed out, the undersigned has,
in effect, found- that inspectors were not supervisory employees. There is no
evidence that the respondent in the appointment of employees to preferred
positions discriminated against Union members in favor of Society members.
As indicated by the closeness of the vote in the Board election on June 24, 1941,
there were a number of employees o.f the respondent who were not in favor of the
Union. This opposition continued after\ the election and expressed itself by
formation of the Society. The undersigned does not believe that the respondent
in any way encouraged the opposition and, in fact, Hewitt attempted to forestall
such a movement by offering White an appointment as assistant industrial rela-
tions director and•Cafelo a position in the time study department. Accordingly,
the undersigned finds that the respondent did' not dominate, interfere, with Ior
contribute support to the Society in its formation and adminis tration. •
D. T;,,-- alleged refusal to bargain collectively 'with the Union
1. The unilateral increase on June 8, 1942
The contract between the Union and the respondent provided for a general
review.on March 16, 1942, of wages and base rates of pay. Upon request by the
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, representatives of the Union and of-the respondent met-on March, 18, 1942.
At this meeting the Union asked for an increase of $1 per day and the respondent
,did not offer any increase. The respondent advised the Union at the meeting
that it could not, afford an, increase in wages 'as it had just received informa-
tion on rubber restrictions which would eliminate 50 percent of its'total volume
,of business. '
At the request of the United States Conciliation Service of the Department
of,-Labor the respondent again met with representatives of the Union at a hotel
in Trenton on April 30, 1942. A conciliator of the Department of Labor was
present The conciliator suggested to Hewitt that the matter might be disposed
of if the respondent would offer an increase of one or two cents per hourian'd
Hewitt replied that he vould'consider it. At the-close of the meet ing'the'con-
ciliator asked Hewitt if the'respondent would hold itself in readiness for'another
possible mcettng in one or two weeks and Hewitt advised line that the respondent
would be available at any,time.'4 It does not appear from the- record that a
further meeting was called. The state of the negotiations,at the end of the April
30 meeting remained the'same as at the March 18 meeting On June 8, 1942,
the respondent granted an increase'of 3 cents per hour on all base rates and
posted a notice on its bulletin boards to this effect. The contents of this notice
has been set forth above and it will be noted that the notice does not mention the
Union or the negotiations with the Union. The negotiations with the Union
were still pending on the date of the posting. As found above, Hewitt advised
Chiantese, the secretary of the Union, on June 5 that the respondent was- going
to grant the increase. Chiantese had been present at all the negotiations.
Chiantese, however, was not called as a w-itness." It does not appear from the
-evidence that Chiantese or the Union objected to the impending increase prior
to June 8, 1942. However, in a letter; dated July 2, 1942, the Board advised the
respondent that I a charge, of failure to bargain collectively-had been filed by
the Union. Following the receipt of this letter, the respondent had several
conferences with representatives' of the Board in un effort to settle the case
At these conferences and in subsequent correspondence the respondent stated
that it was willing to post on its bulletin boardsa notice giving full credit .to
the Union for the increase but that it was unwilling to meet other requirements
•of the Board."
With respect to this increase, Hewitt- testified that it was necessary to give
if at the time so as not to. lose employees to'Thermoid Rubber Company, a labor
competitor of the respondent, which company he "understood" had just been
-ordered to give a• 3 cent increase by the War Labor Board. He further testified
that respondent's average hourly rates at that time were one cent below the
average hourly rates paid by The'rnloid. , The testimony of Hewitt to the effect'
• `^ that, Thermoid was a labor competitor of-the respondent and concerning the dif-
ferences in rates, both existing and as ordered by the War Labor Board, is uncon-
tradicted and the undersigned credits Hewitt's testimony in this respect.
The undersigned does not believe that the increase granted by the respondent
on-June 8 constitutes a unilateral increase in view of the fact that Hewitt had
1 '
14 Hewitt testified to the above conversations with the Conciliator and his testimony
in this respect is uncontradicted
's The respondent refused to post a notice as requested by the Board for the reason that
it contained the following paragraph :
In order to- reassure all those concerned, we wish to state to our employees that
we have not bargained, and will not bargain ' collectively with the Essex Mutual
Benefit Society, or any'possible successor to it; and that we will give no assistance
to that Society, nor to any member thereof, in securing or promoting resignations
from Local 212 of the United Rubber Woihers of America, C 1 0.' ,
1
ESSEX RUBBER CO., "INC. , 1301
notified a Union officer with whom the respondent had, been negotiating some
three days prior to the granting of the increase. This notification was in the
nature of a counter-proposal and, apparently not having been objected to by
the Union, it was reasonable for Hewitt to presume that the proposed increase
was acceptable,"to the Union. The reasons testified to by Hewitt as to the,
necessity for the increase at the time are reasonable and justify his actions,
and,' in the undersigned's opinion, overcome any inference that may-be drawn
to the effect that the increase was granted in order to discredit the Union.' The
fact that the notice did not mention the Union is not conclusive that the re-
spondent was attempting to 'discredit the Union. Certainly, the employees of
the respondent knew or must have known that the respondent had a contract
with the Union and that negotiations looking to a general wage increase were
being carried on. Accordingly; the 'undersigned finds, that the respondent by
granting a wage increase of Scenes per hour on June 8, 1942, did not refuse to
bargain collectively with the Union. - r
2. The unilateral increase on October 2, 1942
As stated above, the respondent was advised formally that the Society had
become a labor organization by a letter, dated July 22, 1942, from the,Society ;
and by letter,' dated July 23, 1942, the respondent replied that since it 'had a
contract, with the Union, "... it would be impossible for the Essex Rubber
Company to bargain collectively with any other' agency." On July 29, 1942, the
Society filed with the Board a petition'for investigation and certification as the
bargaining, agent of respondent's employees, and by letter of the same date'the
Board advised the respondent to this effect. Also by letter,',dated ,July 29, 1942,
the Board advised the respondent that the charge (referred to in the, Board's
letter, 'dated July 2,J942, to the respondent) filed'by the Union had been amended
so as to allege domination of the Society by the respondent. r
In accordance with the terms of the contract, the respondent, by letter dated
August 27, \1942; advised the Union of its intention to terminate the contract
on September 28, 1942 In reply to this letter from the respondent, the-Union,
by letter dated August 25, 1942, demanded that the respondent commence negotia-
tions immediately for a renewal of contract. This demand was in accordance
with the provisions of the existing contract. Following this demand by the
Union, a meeting was arranged and representatives of the Union and of the
respondent' met on September 10, •1942;. at a hotel in Trenton. Bosley testified
that at this meeting a new contract was discussed and the respondent agreed to.-
submit to the Union a iiroposed contract within a few days, but otherwise no,
agreement was reached. It does not appear from the evidence that, the respondent-
ever submitted a,proposed contract. The respondent then sent the following letter
to the Union :
SEPTEMBER 17, 1942. -
Mr. O. H . BosnEY
U. R.1W. A.-CIO
235 E. Hanover Street
Trenton, N. J.
DEAR' Sn3:_
On July 29, 1942 this company was) notified by the National Labor Rela-
tions Board that a petition for investigation and certification of representa-
tives pursuant to Section19 (c) of the National Labor Relations Act had been
filed by the Essex Mutual Benefit Society alleging that they represented a
majority of the production and maintenance employees of this company and
that the case had been referred.to the field examiner for investigation and
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302 • DECISIONS OF NAT 'ION'AL LABOR RELATIONS BOARD
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disposition . No disposition of this case having been made by the National
Labor Relations Board up until August 27 , 1942, the company not wishing
to place itself in the untenable position of bargaining with an agency which
was in dispute under the law ; notified you in conformity with the termina-
tion clause of the contract entered into between the Essex Rubber Company
.and Local .Union#212 of the United Rubber Workers of America under date
of August 27th that it intended to terminate the contract on, the 28th day
of September, 1942.
1 The National Labor Relations Board is being\notified by letter today that
until such time as the proper bargaining agent is made known to this coin-
pany,by the Board that there will be no further negotiations regarding wages,
hours or working conditions or any other contractural relations between
this company and any bonafide or alleged representative body. This com-
pany will therefore await advice and instructions from the National Labor
Relations Board regarding any future negotiations.
Yours very truly,
i [s]
EssEx RUBBER COMPANY,
JOSEPH R. HEWITT
Joseph R. Hewitt
Executive Vice President.
JRH/d
cc : Bennet F. Sahaufer '
National Labor Relations, Board
This letter concluded the negotiations between the Union and the respondent.
,On October 2, 1942, the respondent posted the following notice' on its bulletin!
.boards:,
Notice To All Our Employees
Until we are instructed by the National Labor Relations Board, 1this com-
pany is not in a position to enter ,into ' negotiations with any' bargaining
agency among its employees.
As a temporary adjustment , effective ' Monday, October 5, all production
and maintenance employees will [sic] an increase of 6¢ per hour over their
pfesent hourly rate.
This increase will continue until the company is notified by the National
Labor Relations Board as to,the authorized representatives of our employees,
at which time the company will be glad to negotiate with whomever is de-
ESSEx RUBBER COMPANY,
JosEPa R. HEWITT.
Glared,the recognized bargaining agency under the law. I
OaroBEa -2, 1942.
During the 3 weeks preceding October 2 , 1942, 56 employees left the employ of
the respondent and prior to this period an average of , 9 employees -per'week for
7 weeks left the employ of the respondent .- Hewitt testified and the undersigned
finds that these employees had obtained new positions with defense plants in the
area, that . the Vulcanized Rubber Company which was nearby had just given a
5 cent per hour increase , and that in order to stop a further loss of ' its employees
-the respondent gave the 6 cent per hour increase on October 2.
3. Representation of a majority in the appropriate , unit on October 2, 1942
As stated above, in the election conducted by the Board on June 24, 1941, thel
Union won the election ' by a vote of 216 to 184 . This indicates that there were
at least 400 employees in the appropriate unit at that time. It is undisputed
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1
ESSEX RUBBER ' CO., INC. 303
(1)• that the Union originally submitted to the respondent, in 1941 a total of
147 authorization cards signed by employees; (2) -that a total of 44 employees
requested the respondent to deduct their dues in full during the term of the
contract; (3) that at least 34 of-these 44 employees did resign from the Union;
(4) that 90 Union members left the employ of the respondent during the term
of the contract; (5) that the Union submitted 29, new authorization cards,
including 5 from employees who bad left the employ of respondent and had
been rehired, during the term of the)coritract; and (6) that when the contract
was terminated the respondent had a Union check-off of 42 employees.. The
contract expired on September 28, 1942. There is no evidence that the appro-
priate union decreased in size during the term of the contract and, in fact, the
evidence indicates otherwise.
Although the above evidence on Union check-off is not conclusive as to Union
membership, it is sufficient to rebut any presumption of continuing membership
during and' after the, termination of the contract. The undersigned has already
found, in effect, that the loss in Union membership was not caused by any unfair
labor practices on the part of the respondent. Accordingly, the undersigned finds
that Union did not represent a majority of employees of the respondent in
the appropriate unit' during September' and October,' 1942, and particularly on
October 2, 1942.
4. Concluding findings
The undersigned believes that Hewitt's reasons as to-the necessity of granting
an increase on October 2, 1942, are reasonable and justify the action taken. In
addition, the respondent had been advised by 'the Board in July, 1942, that the
Society had requested certification and the evidence shows that the respondent
knew from its pay-roll records that the Union did not represent a majority in
the appropriate unit during September and October of'1942. The undersigned
has; found 'above that the Union did not represent a majority at that time. Ac-
cordngly, • the undersigned finds that the increase granted on October 2, 1942,
by the respondent was not a unilateral increase and that the respondent by
granting this increase did not refuse to bargain collectively with the Union.
The undersigned does not attach any significance to the deduction by"the
respondent during the term of the contract of Union dues in full, especially
since the respondent's employees requested and authorizes such deductions.
(Moreover, the undersigned-is of the-opinion that such deductions were knot in
violatidn of the contract. Accordingly, the undersigned finds that the respondent
by deducting Union dues in full has not refused to bargain collectively with the
Union.
Upon 'all the circumstances, the undersigned is convinced and finds that the,
respondent has not' refused to bargain collectively within' the meaning of the J
Act.
IV. THE EFFEQr OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set' forth in Section III above, occurring in con-
nection with the operations of the respondent described in Section I above, have a
close, intimate, and substantial relation to trade, traffic,, and 'commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce. .
V. THE REMEDY ,
Since it has 'been found that the respondent" has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take ce rtain
affirmative action designed to effectuate the policies of the Act. '
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304 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
The unfair labor practices of the respondent as hereinabove found consist in`the
sending of the letter dated September 15, 1041, to its employees which interfered
with the concerted activities of its -employees. The deterrent influence of this
letter can be removed only by a statement by*the respondent, properly publicized,
to `the effect that its employees , are free to exercise `the rights guaranteed ahem
under the Act without risk of discrimination for so doing. Accordingly, it will be
recommended that such notice be posted by the respondent
Upon the basis of the above findings of fact and upon the entire record in- the
case, the undersigned makes the following :'
Corccxusroi s OF LAW
1. United Rubber Workers of America, Local No. 212, aflilutted with the
Congress of Industrial Organizations, and Essex 'Mutual Benefit Society; un-
affiliated, are labor organizations within the meaning of Section'2 (5) of the Act.
2. By interfering-with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged' in
and is engaging in unfair labor practices, within the meaning of Section 8.'(1)
of the Act., , `
f,
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and'(7) of the Act. -
4. The respondent has not dominated, interfered with or contributed support
to Essex Mutual Benefit Society in its formation and administration, within the
meaning of Section 8 (2)' of the,Act.
5r The respondent did not and has not refused to bargain collectively 'with
United Rubber Workers of America, Local No. 212, affiliated witi the Congress of
Industrial Organizations, during the periods of time when it was the exclusive
representative of the respondent's employees in the appropriate unit, within the
meaning of Section 8 (5) of the Act.
RECOMMENDATIONS ,
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that Essex Rubber Co: Inc., its officers', agents, successors
and assigns, shall:
1. Cease and desist from:,
(a) Interfering with,. restraining, or,coercing its employees in the exercise,
of the rights to.self-organization, to form, join or assist labor, organizatioiss;;•to•,
bargain collectively through representatives of their own choosing and'to engage
in concerted activities for the purposes of collective bargaining or other mutual
aid and protection, as guaranteed in 'Section 7 of the Act' ,
2. Take the,following affirmative action which the undersigned finds ,will effec-
tuate the policies of the Act
(a) Post immediately in conspicuous places at its plant at Trenton, New
Jersey, and keep posted for at least sixty (60) cgnsecutive1dnys from the date
Hof posting, notices to its'employees stating that the' respondent will not"engage
in the conduct from which it is recommended that it cease and desist in liaragraph _
1 (a).of these recommendations; -
\ (b) File w th,the Regional Director for the Fourth Region, on gr before ten
(10) days from the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has complied
with'theiforegoing recommendations,
It is further recommended that unless oh or before ten (10) 'days-from the
receipt of this, Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with, the\foregoing recommendations the National
N
ESSEX RUBBER CO., INC. 305
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent violated Section 8 (2) and (5) of the Act. N -
As provided in Section 33 of Article II of the Rules and Regulations of, the
National Labor Relations Board-Series 2-as amended, effective October 28,
,1042, any party may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section'32 of Article II
if said Rules and Regulations, file with the Boai•d,' Shoreham Building, Washing-
ton, D. C., an original 'and four copies of a statement in writing setting forth
such exceptions to the 'Intermediate Report or to any other part of the record
or proceeding (including rulings upon' all motions or objections) as he relies
upon,,together'with,the original and four copies, of a brief in support thereof.
Rs further provided in said Section 33, should any party desire permission to
argue orally before-the Board, request therefor must be made in writing to the
Board within ,ten (10) days from the date of the order, transferring the case
'to the Board.
,/• JOHN H. EADIE,
Trial Examiner.
Dated February 19, 1943. i
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